Taiwan and Japan: A complex fisheries relationship

Marine Policy 51 (2015) 293–301

Contents lists available at ScienceDirect

Marine Policy journal homepage: www.elsevier.com/locate/marpol

Taiwan and Japan: A complex fisheries relationship Yun-Hu Yeh b, Huan-Sheng Tseng a,n, Dong-Taur Su c, Ching-Hsiewn Ou b a b c

Department of Maritime Policing, Taiwan Police College, Taipei, Taiwan Institute of Environmental Biology and Fishery Science, National Taiwan Ocean University, Keelung, Taiwan Department of Shipping Technology, National Kaohsiung Marine University, Kaohsiung, Taiwan

art ic l e i nf o

a b s t r a c t

Article history: Received 3 November 2013 Received in revised form 10 September 2014 Accepted 10 September 2014

The East China Sea offers rich fishery resources and is a very important fishing ground for both Taiwan and Japan. However, both parties have claimed 200-nautical-mile Exclusive Economic Zones (EEZ) consistent with the United Nations Convention on the Law of the Sea, resulting in overlapping EEZ claims. Additionally, an issue of disputed sovereignty exists with regards to the eight uninhabited Islands between Taiwan, Japan and China in the southern part of the East China Sea, a situation further complicated by the fact that Taiwan and Japan have no formal diplomatic relations. Against this context, Taiwan and Japan have chosen to shelve their territorial disputes and address their fisheries conflict by signing a fisheries agreement in 2013, with the hope of resolving, or at least managing, the fisheries dispute within their shared waters. This paper aims to provide the analysis of the fisheries dispute caused by overlapping EEZs between Taiwan and Japan, the challenges encountered during the two sides' fishery negotiations, as well as the scope and the significance of the fisheries agreement signed by Taiwan and Japan. & 2014 Published by Elsevier Ltd.

Keywords: Taiwan Japan Exclusive Economic Zone Fisheries Agreement Temporary Enforcement Line East China Sea Peace Initiative

1. Introduction The East China Sea is a semi-enclosed sea of water surrounded by Taiwan, Japan, Korea, and China [1]. Abundant fishery resources make the East China Sea an important fishing ground for its littoral States [2,3]. The United Nations Convention on the Law of the Sea (UNCLOS) was opened for signature in 1982 and codified the principle of 200-nautical-mile Exclusive Economic Zones (EEZs).1 The fishing activities are the critical economic activities in EEZs [4] and the fact that where coastal States are less than 400 nautical miles (nm) apart from one another overlapping EEZ claims will exist. It will likely result in fisheries conflicts between States with opposite or adjacent coasts. Since the establishment of the EEZ regime,2 all coastal States and entities surrounding the East China Sea [5] have overlapping EEZ claims, with the exception of Taiwan and Korea. To manage fisheries issues, Japan, China and Korea have signed three bilateral Fisheries Agreements relating to the central and

n Correspondence to: No. 153, Sec. 3, Singlong Rd. ,Wunshan District, Taipei City 11696, Taiwan, ROC. Tel.: þ 886 2 246 22192; fax: þ 886 2 246 28597. E-mail address: [email protected] (H.-S. Tseng). 1 Art. 57 of the UNCLOS. 2 Respective EEZ laws were promulgated in Taiwan (1998), Japan (1996), Korea (1996), and China (1998); the laws of these parties all adopted the principle of the 200 nm EEZ.

http://dx.doi.org/10.1016/j.marpol.2014.09.017 0308-597X/& 2014 Published by Elsevier Ltd.

northern parts of the East China Sea [1,5–7]. Taiwan and China have experienced fishing disputes, but they have no fishery negotiations and agreements for the shared waters due to their unique political relations [8]. Taiwan and Japan have also faced many fishing disputes in their overlapping EEZs, and Taiwanese fishing boats have been detained by the Japan Coast Guard [9]. As part of ongoing efforts to resolve this issue, Taiwan and Japan have been conducting fishery negotiations since 1996. However, because of the disputes and controversies surrounding the territorial sovereignty of eight uninhabited Islands collectively known as the Diaoyutai/Senkaku Islands [10], as well as various related factors, any accomplishments derived from the ongoing negotiations have so far been suspended. After great efforts were made by both parties, and coupled with the influence of external factors, Taiwan and Japan in 2013 finally signed the Fisheries Agreement that would help manage the most critical fishing disputes. Even though some issues have since persisted and are yet to be tackled, the Fisheries Agreement was an important milestone collaboratively established by Taiwan and Japan.

2. Political relations between Taiwan and Japan Taiwan once belonged to the Government of the Chinese Qing Dynasty. After China lost the First Sino-Japanese War against

294

Y.-H. Yeh et al. / Marine Policy 51 (2015) 293–301

Japan,3 Taiwan was ceded to Japan in 18954 resulting in Taiwan becoming a colony of Japan [11]. As a result, Taiwan and the islands appertaining to Taiwan became Japanese protectorates, and the residents of Taiwan became subjects of Japan. In 1911, Dr. Sun Yat-Sen led the revolution that overthrew the Qing Government and subsequently established the Republic of China (ROC), the first Asian democratic republic. After Japan was defeated in the Second Sino-Japanese War,5 Japan returned control of Taiwan and its appertaining islands to China. Soon after the Chinese Civil War broke out in 1949, a new government, the People's Republic of China (PRC), was however established. The new government controlled the majority of China, while the government of the ROC retreated to Taiwan and managed to retain sovereignty over the region, the people of Taiwan, and other islands, including Penghu, Kinmen and Matsu [8].

The scope of the initiatives was wide, including economics and trade, tourism, academics, culture, technology, disaster prevention, environmental affairs, energy conservation, maritime safety, cooperation to crack down on international crime, collaboration of agriculture and fishing industries, regional interaction and exchange visits by the media. This demonstrated the growing and diversifying collaborative relationship between Taiwan and Japan. The collaboration on marine affairs included entry-exit management and smuggling prevention, maintenance of maritime safety and order, and reinforcement of agricultural and fishing collaboration and interaction. Such initiatives lead us to believe that Taiwan and Japan will conduct further arbitration and negotiation on the issue of overlapping waters and fisheries management in order to finally handle unresolved issues.

2.1. Diplomatic relations between Taiwan and Japan

3. The fisheries relationship between Taiwan and Japan

After the establishment of the PRC in 1949, Japan retained its diplomatic relations with Taiwan until September 1972, when Japan established its diplomatic relations with the PRC and severed its former diplomatic ties with the ROC. In the Joint Communiqué between the Government of Japan and the Government of the PRC, it stated that the PRC government based in Beijing was the sole legitimate government of China.6 During their diplomatic negotiations, the PRC government demanded that the Japanese government recognize and state that ‘Taiwan is a part of the PRC territory’. However, Japan responded in an ambiguous manner by stating that it ‘understands and respects’ the stand of the PRC,7 rather than use the term ‘recognize’. Japan's statement created a substantial gray zone. Consequently, China and Japan both agreed that Japan would only establish or retain either regional or non-governmental relations with Taiwan. This agreement also offered room for interpretation and revision after Japan severed its formal relations with Taiwan. 2.2. Exchange channel between Taiwan and Japan Whilst Taiwan and Japan did not share formal diplomatic relations, the two sides respectively founded non-governmental administrative authorities in the same year in which their diplomatic relations terminated, to continue exchanges in economic, cultural and social affairs. The Association of East Asian Relations (AEAR) was founded to represent Taiwan, and the Interchange Association (IA) was founded to represent Japan. In December 1972, the two sides signed the ‘Arrangement between AEAR and IA for the Establishment of the Respective Overseas Offices Agreement’ to provide a legal foundation for the work they were to carry out. The personnel of these authorities were civil servants and had the authority to deal with affairs, implying a strong political involvement; from the legal point of view these authorities were quasi-official. Subsequently, the mediation and negotiation of a variety of affairs between Taiwan and Japan were carried out through the AEAR and the IA. The development of political relations between Taiwan and Japan is detailed in Table 1. In reality, Taiwan and Japan have a history of strong collaboration in a number of areas including economics, trade, culture and tourism. This was particularly evident in December 2010, when many collaborative initiatives were developed and promoted through the agreement reached by the AEAR and the IA. 3 4 5 6 7

The Art. The Art. Art.

First Sino-Japanese War lasted from 1894 to 1895. 2 of the Treaty of Shimonoseki. Second Sino-Japanese War lasted from 1937 to 1945. 2 of the Communiqué. 3 of the Communiqué.

3.1. Taiwan fishing history during the Japanese colonial period During the early Japanese colonial period, the fishing industry in Taiwan was underdeveloped. The majority of Taiwan's economic products were agricultural, whereas fishing businesses were small and local and received little investment. Fishermen used bamboo rafts and unpowered yachts to fish; their fishing gear and patterns were simple, with most of the activities being conducted in coastal waters. Fishing industry was predominately an occupation of local people, and fishermen were generally underprivileged. This is an example of how underdeveloped the fishing industry in Taiwan once was due to the fishing area being limited to the west coast of Taiwan proper. The catches were sold locally, and since fishing ports were inadequate, jobs were concentrated in the agriculture industry [12]. Although some people took to fishing during the prime season when the weather permitted, the fishing industry did not develop or thrive for a long time. During the period of colonial rule, Japan placed significant emphasis on the development of the fishing industry in Taiwan. Japan established the Bureau of Fisheries, the Fisheries Research Institute, fisheries training institutes and fisheries schools to help foster specialists for the fishing industry, and assisted in the development of administrative management and operation mechanisms for aquaculture associations. The Japanese government's contribution was not only the introduction of fishing technologies, skills and regulations, but also consisted of establishing relevant regulations and policies in the region [13]. Japan ruled Taiwan for 50 years and during this period actively introduced fishing knowledge and skills as part of its colonial economy and the Southern Expansion Doctrine.8 Various motor vessels, types fishing gear and patterns were introduced, and consequently Taiwan's fishing industry took a considerable step toward modernization. Through utilizing the labor and fishery resources in Taiwan, both sides gained economic benefits. During the industry's development and infrastructure were built in Taiwan. Fishermen also gained relevant new knowledge and skills, enabling them to gradually advance from coastal waters to distant waters [14]. Japan also contributed heavily to Taiwan's fishing industry by investing in advanced technologies and by deploying and rewarding Japanese personnel in the fishing industry who agreed to be dispatched to Taiwan. Over the course of a few decades of tireless investigation and research work, a solid foundation for the modernization of the fishing industry of Taiwan was established [15]. 8 During World War II, Japan stated that Southeast Asia and the Pacific Islands were Japan's sphere of interest and that the potential value to the Japanese Empire for economic and territorial expansion in those zones was greater than elsewhere.

Y.-H. Yeh et al. / Marine Policy 51 (2015) 293–301

295

Table 1 Important historical events between Taiwan and Japan. Year Historical event 1894 First Sino-Japanese War. 1895 The governments of China's Qing Dynasty and Japan signed the Treaty of Shimonoseki, in which Taiwan was ceded to Japan. 1911 Dr. Sun Yat-Sen overthrew the Qing Dynasty and founded the Republic of China. 1937 Second Sino-Japanese War. 1945 Second Sino-Japanese War ended, Japan lost and Taiwan was returned to China. 1949 China was now under the ruling of two governments – ROC and PRC. ROC has sovereignty over Taiwan, and PRC has sovereignty over Mainland China. 1972 The diplomatic relations between the ROC and Japan were severed; diplomatic relations between the PRC and Japan were established.

The Taiwan Governor-General's Office was the highest level of administrative authority established by the Japanese government. The Taiwan Governor-General's Office published many aquaticrelated books every year during Japanese colonial period. In 1925, the Taiwan Governor-General's Office compiled and published ‘Aquatics in Taiwan’, which illustrated the environment of the fishing industry at the time [16]. In 1935, Taiwan GovernorGeneral's Office also published the other aquatic book [17] and introduced fishing grounds around Taiwan (Fig. 1). This chart provided information on the various species and their distributions throughout the fishing grounds. Subsequently, the Taiwan Governor-General's Office went on to publish several other charts relating to fishing grounds to help illustrate the main economically important species and their distribution. From these figures, it is evident that during the colonial period the fishing grounds utilized by Taiwanese fishermen exceeded the coastal waters around Taiwan proper. They included the waters around the Diaoyutai/Senkaku Islands and north of 271N. Historical evidence also shows that Taiwanese fishermen have traditionally fished in these waters, as they do today. During World War II, some of the fishing boats and technical specialists were conscripted, while other boats and facilities were destroyed in air raids. Fuel and supply replenishment for fishermen became very difficult as a result, and distant and coastal water fishing industries diminished dramatically [18]. The colonial period ended in 1945 when Japan lost the war and returned Taiwan to China. However, Japan's efforts building the fishing industries in Taiwan during the colonial period were important foundation to Taiwan and facilitated Taiwan's fisheries development. 3.2. EEZ laws of Taiwan and Japan When UNCLOS was opened for signature in 1982, many coastal States began to establish their respective EEZs. Even though Taiwan was not a member of the United Nations, it respected the stipulations and principles of the UNCLOS and actively incorporated them into its domestic law [19]. Japan and Taiwan respectively promulgated laws stipulating their EEZs in 1996 and 1998. Geographically, Taiwan and Japan are very close. Taiwan's northeastern coast and the southwestern coast of Okinawa, Japan, are approximately 340 nm apart; Japan's westernmost territory, Yonaguni, is only approximately 60 nm from Taiwan proper,9 which has made the issue of overlapping EEZs inevitable. The relations between Taiwan and Japan are different from the relations between Taiwan and China. Undoubtedly, Taiwan and Japan are two different States in international relations. There exist general

Notes

China lost the war.

Chinese Civil War Japan and ROC maintained their diplomatic relations. Japan established the Interchange Association and Taiwan founded the Association of East Asian Relations for the purpose of handling Taiwan–Japan affairs.

regulations concerning foreign affairs which apply to all matters related to Japan. For instance, the Law on the Exclusive Economic Zone and the Continental Shelf of the ROC applies to Japanese fishing boats and fishermen encroaching on Taiwan's EEZ for fishing activities. Under this Law, the offenders may receive a fine of up to NT$5 million.10 Similarly, Japan would apply the Law on Exercising Sovereign Right on Fishing in the Japanese EEZ to any illicit Taiwanese fishing boats entering its EEZ to conduct fishing activities, and the offenders may receive a fine of up to JPY$10 million [20].11 3.3. Fisheries Agreements between Japan and neighboring countries Since the stipulation of the EEZs, the issue of overlapping EEZs affects any two neighboring countries that less than 400 nm apart. To manage such issues, Japan initiated Fisheries Agreements with its neighboring countries; these agreements include the Japan– Russia, Japan–Korea, and Japan–China Fisheries Agreements [1,5,6,20,21]. In addition to the issues surrounding the EEZ, there are also territorial disputes between these countries, including disputes over the sovereignty of the South Kuril/North Territories Islands, Dokdo/Takeshima and Diaoyutai/Senkaku Islands [5,22– 27]. However, these Fisheries Agreements were not Boundary Agreements. These Agreements covered the fishing issues only, did not settle territorial and maritime boundary disputes between these countries. The Japan–China Fisheries Agreement signed in 1997 stipulates the formation of the Provisional Measures Zone (PMZ) in the northern waters of 271N (Fig. 2). That is, at a significant distance to the north of the maritime area associated with the disputed islands in the southern part of the East China Sea. To deal with the matters of Taiwan and the sovereignty of the Diaoyutai/Senkaku Islands, the existing fishing orders and operations continue to apply to the south waters of the PMZ [1,28]. In fact, the Japan–China Fisheries Agreement does not specifically deal with the south waters of the PMZ. 3.4. Complex fisheries relationship between Taiwan and Japan The waters around the Diaoyutai/Senkaku Islands have been traditional fishing grounds for Taiwanese fishing boats ever since the Japanese colonial period [29] (Fig. 1). However, the issue of overlapping EEZs exists and is amplified by the ongoing disputes between China, Taiwan and Japan regarding their claims of sovereignty over the Diaoyutai/Senkaku Islands [30]. China continues to use its ‘One China’ policy to argue that Taiwan is a part of its territory. Furthermore, it claims that since the Diaoyutai/ Senkaku Islands are appertaining to Taiwan, they therefore also 10

9

Measurements made by the authors through the ‘Geographic Information System (GIS)’ technology.

Articles 3 and 20 of the Law on the EEZ and Contiguous Shelf of ROC. Articles 4 and 18 of the Law on Exercising Sovereign Right on Fishing in the Japanese EEZ. 11

296

Y.-H. Yeh et al. / Marine Policy 51 (2015) 293–301

Fig. 1. Main fishing grounds in Taiwan during Japanese colonial period. Source: [17].

belong to China.12 On the other hand, the United States asserts that the Diaoyutai/Senkaku Islands fall within the protection range of the US–Japan Security Treaty [31,32].13 The statement of the United States further divides China, Taiwan and Japan; because Taiwan and China respectively object that the jurisdiction of the Islands territories belong to Japan. Moreover, the potential oil and natural gas reserves under the East China Sea [33–36]14 further complicate the issue of overlapping EEZs between Taiwan and Japan. As Taiwan currently has no diplomatic relations with Japan, if issues concerning fishing activities are to be resolved through formal diplomatic measures, Japan must also take into consideration the viewpoint of China rather than simply treating this as a bilateral issue between Taiwan and Japan. Regardless of the

12 Preamble to the Constitution and Art. 2 of the Law on the Territorial Sea and the Contiguous Zone of the PRC. 13 The main talking point of U.S. President Barack Obama's visit to Japan has been his declaration that the Diaoyutai/Senkaku Islands are subject to Art. 5 of the US–Japan Security Treaty on 23–24 April 2014. 14 China exploited natural gas since 1988 in the East China Sea.

ongoing issue surrounding the sovereignty of the Diaoyutai/ Senkaku Islands, Taiwan has adopted a much friendlier attitude towards Japan than other countries experiencing territorial disputes with their neighbors. For instance, people in Taiwan responded to the mega earthquake that hit Japan on 11 March 2011 by raising considerable funds for disaster relief efforts [37]. Fishing disputes often arise between Taiwan and Japan. When Taiwanese fishing boats entered Japan's territorial sea or waters around the Diaoyutai/Senkaku Islands, they were traditionally warned, expelled, prohibited, fined, detained or had their fishing gear purposely damaged by Japanese official vessels.15 In order to handle such issues, Taiwan and Japan began conducting fisheries negotiations in 1996, but the three negotiations held between 1996 and 1997 led to no further progression due to both parties insisting on their sovereignty over the Diaoyutai/Senkaku Islands by using their own definition regarding the right of sovereignty.

15 Japan's official vessels include the inspection vessels of the Fisheries Agency, and the patrol vessels of the Coast Guard.

Y.-H. Yeh et al. / Marine Policy 51 (2015) 293–301

297

Fig. 2. Overlapping EEZs between Taiwan, Japan and China.

In response to the ongoing fishing disputes, Taiwan and Japan agreed to momentarily put aside the issue of sovereignty over the Diaoyutai/Senkaku Islands, and resolved that from the fourth negotiation meeting onwards they would focus on the discussion of resolvable fisheries issues. In reality, the scope of the EEZ probably is impacted on the sovereignty dispute over the Islands.16 Since which State obtains the Diaoyutai/Senkaku Islands, it may declare the 200-nautical-mile EEZ around the Islands. In the Japan–China Fisheries Agreement signed in 1997, it was agreed between China and Japan that the conflict over the sovereignty over the Diaoyutai/Senkaku Islands would be temporarily disregarded [9,38,39]; to some extent, China and Japan thus had both restricted themselves from being able to advocate their sovereignty claims. As a subsequent trade-off, they each had at least retained a certain amount of leeway to argue for the rights and interests of their respective EEZs. 3.5. Measures to protect Taiwan's fishing rights In 2003, the Taiwan government defined the Temporary Enforcement Line (TEL) to ensure Taiwanese fishermen the rights to operate in the East China Sea [40]. The TEL is an unilateral claim line from Taiwan. The longest distance between the northernmost of the TEL and the Diaoyutai/Senkaku Islands is exactly 200 nm that equals the farthest distance of the EEZ in accordance with the UNCLOS. Thus there is some speculation that the TEL should be the boundary of the EEZ as insisted upon by the Taiwan government. The northern boundary of TEL (291180 N) is not measured from Taiwan proper or the Pengjia Islet – rather, the boundary is set 16 Under ‘full effect’ delimitation, a full 200 nm EEZ can be delimited; under ‘partial effect’ delimitation, a 12 nm zone on the territorial sea or other waters can be delimited; under the ‘zero effect’ delimitation, the effect of the islands is disregarded.

200 nm from the Diaoyutai/Senkaku Islands (Fig. 2). Therefore, the Taiwan Coast Guard is responsible for protecting Taiwanese fishing boats operating within the boundary of the TEL [41] and tries to prevent them from being intervened with and harassed by vessels from other countries. However, Japan claims the ‘median line’ as the border of the EEZ with neighboring countries [26,42].17 Nevertheless, the TEL still overlaps the EEZ in which the ‘median line’ is claimed by Japan (Fig. 2). The Japan Coast Guard patrol vessels carry out prevention and detention duties near the TEL. Statistics regarding Taiwanese fishing boats being expelled or detained by Japan Coast Guard [43] are shown in Table 2. Moreover, if Taiwanese fishing boats operating in waters east of the TEL near the Japanese islands are caught, they will be detained and fined. In reality, Japan still uses the ‘median line’ to define the law enforcement boundary, but as shown in Table 2, the enforcement methods vary in different regions. For instance, if Taiwanese fishing boats are operating in waters west of the TEL close to Taiwan, the Japan Coast Guard usually conducts expulsions and warnings rather than detainments and fines. If the same situation occurs in waters east of the TEL closer to Japan, detainment and fines are more likely to be implemented. Japan thus appears to neither recognize nor entirely disregard the TEL. The degree of its law enforcement and penalty level seems to vary and is affected by the TEL. In August 2012, the Japanese government made the announcement to nationalize the Diaoyutai/Senkaku Islands with the intention to encourage more effective official management of the Islands.18 If the Japanese private owners visit and build the Islands freely, it may cause more international disputes, especially for

17

Art. 2 of the Law on the EEZ and Contiguous Shelf of Japan. The Japanese government bought three of the Islands with JPY$2.05 billion from the private ownership. 18

298

Y.-H. Yeh et al. / Marine Policy 51 (2015) 293–301

Table 2 Statistics on Taiwanese fishing boats expelled and detained by Japan. Source: [43]. Year

2005 2006 2007 2008 2009 2010 2011 2012 2013

West of TEL

East of TEL

Total

Expelled

Detained

Expelled

Detained

13 32 27 42 38 35 22 20 6

0 0 0 0 0 0 0 0 0

3 14 17 18 19 3 1 2 12

7 3 1 3 7 2 5 5 7

23 49 45 61 60 45 25 27 25

China and Taiwan. The decision resulted in a large-scale antiJapanese movement in China, causing catastrophic losses for Japanese enterprises operating in China, as well as huge economic losses due to a sharp decrease in the number of Chinese tourists visiting Japan [44]. On 25 September 2012, 58 fishing boats with 292 Taiwanese fishermen on board left for the Diaoyutai/Senkaku Islands to declare their fishing rights and interests. The Taiwan Coast Guard dispatched 12 patrol vessels to escort them. At the same time, the Japan Coast Guard dispatched 34 patrol vessels to counteract Taiwan's effort and both Coast Guards employed water cannon blasts against each other [45]. On the same day, the Taiwanese fishing boats and Coast Guard patrol vessels entered the area only 2.1 nm from the Diaoyutai/Senkaku Islands [46], arousing international attention. Since Japan made a decision to nationalize the Islands, the territorial disputes in the East China Sea evoked further quarrels between Taiwan, China and Japan. In August 2012, Taiwan proposed the East China Sea Peace Initiative. To enhance the effectiveness and impact of the Initiative, it was immediately followed by the promulgation of the East China Sea Peace Initiative Implementation Guidelines. The Initiative was to be implemented in two stages. The first stage involved a dialog during which the territorial dispute would be shelved. The second stage revolved around sharing resources through joint development. Potential areas for joint development efforts comprised the conservation and management of the East China Sea's living resources, the exploration and exploitation of its non-living resources, marine scientific research and protection of the marine environment, and the resolution of disputes through peaceful means. The eventual goal was to move from three parallel tracks of bilateral dialog (between Taiwan and Japan, China and Japan, and Taiwan and China) to one-track trilateral negotiations [47,48]. The Initiative aimed to resolve territorial disputes in a peaceful manner, thus demonstrating the spirit of international law.19 The movement to protect fishing rights that took place in Taiwan in September 2012 prompted Japan to consider its options. Subsequently, the Japanese government delivered a response through the IA. It stated that Japan is close to Taiwan geographically and the unresolved disputes do exist between Japan and Taiwan inevitably. 20 However, Japan could not accept the proposal of the East China Sea Peace Initiative; Japan did appreciate and respect the spirit and rationale of the Initiative and therefore would like to propose reopening negotiations concerning fishing disputes [49]. This message indicated Japan's indirect admission

that sovereignty over the Diaoyutai/Senkaku Islands was disputable and that Japan was willing to collaborate with Taiwan to foster the development of their respective fishing industries. After several talks, Taiwan and Japan finally achieved a preliminary consensus on 10 April 2013, and signed the Fisheries Agreement.

4. Analysis of the Taiwan–Japan Fisheries Agreement Since 1996, Taiwan and Japan have held 17 rounds of talks concerning the fishing industry and connected disputes. The latest talks held through the AEAR and the IA finally led to Taiwan and Japan signing the Fisheries Agreement. Even though the Taiwan– Japan Fisheries Agreement contains only five articles, the scope and content of these articles show the political compromises and accommodations both parties were willing to make. The signing of the Agreement can be regarded as a major milestone to committing both parties to resolve the longstanding issue of overlapping EEZs in the East China Sea and its impacts on the fishing industry. At the international relations level, Japan was concerned that Taiwan would join with China and that both would oppose Japan in the territorial disputes over the Diaoyutai/Senkaku Islands. According to the past experience, the protesters from Taiwan, Hong Kong and China have jointly gone to the Diaoyutai/Senkaku Islands to express their patriotism [36,50,51]. If Taiwan cooperates with China to oppose Japan concerning the dispute of Diaoyutai/ Senkaku Islands sovereignty, Japan must consume more energy to handle the issues. As a result, Japan would have a greater disadvantage in the East China Sea situation. Moreover, Japan's friendly response to Taiwan on this occasion was also due to Taiwan's humanitarian contributions following the earthquake in 2011 – the most generous donation for disaster relief was received from Taiwan.21 Furthermore, Japanese enterprises and tourists in Taiwan had not been subjected to any harassment or negative treatment because of the Diaoyutai/Senkaku Islands situation, and both Taiwan and Japan had continued to cooperate in various economic and cultural affairs. As a formal colony of Japan, Taiwan had benefited from Japanese investment, including the fishing industry. After World War II, Taiwan had not engaged in any boycotts or malicious actions toward Japan. Japan and Taiwan thus continued to share a unique bond. The following section outlines an analysis of the Taiwan–Japan Fisheries Agreement.

4.1. Signing of the Agreement Due to the absence of formal diplomatic relations between Taiwan and Japan, the Agreement was not signed by standard foreign diplomatic methods. Rather, the talks and the Agreement were facilitated by non-governmental administrative authorities – the AEAR from Taiwan and the IA from Japan. The official title of the agreement was ‘Fisheries Agreement between the AEAR and the IA’, suggesting that the Agreement was between two organizations rather than two nations. Although the AEAR and the IA were not government administrative authorities, they were nevertheless officially empowered and delegated by their respective governments. Furthermore, during the signing of the Agreement, both parties' senior officers of the departments of foreign affairs, fisheries agencies and coast guards were present. The Agreement was an official diplomatic document22 and legally binding to both parties.

19

Art. 33 of the Charter of the United Nations. Art. 280 of the UNCLOS. Although Japan does not explain clearly about what dispute was unresolved, it is the territorial dispute over the Diaoyutai/Senkaku Islands between Taiwan and Japan. 20

21 22

The donation totaled approximately JPY$20 billion, or US$252 million. Art. 2 of the Vienna Convention on the Law of Treaties 1969.

Y.-H. Yeh et al. / Marine Policy 51 (2015) 293–301

4.2. Objectives of the Agreement23 The Agreement promotes friendly and mutually beneficial cooperation whilst keeping the peace in the East China Sea. It strives to conserve and appropriately exploit the living resources within the EEZs, and regulates fishing activities. Although these were the stated objectives, in reality the Agreement was signed predominantly to resolve the fishing disputes caused by overlapping EEZs. The content of the Article 1 does not appear directly in other bilateral Fisheries Agreements such as the Japan–China, Japan–Korea and China–Korea Fisheries Agreements. It is included in the Agreement due to Japan's positive response to the East China Sea Peace initiative.

299

Japan in the latest negotiation, Japan was, in a sense, forced to compromise with Taiwan on the solution in the waters south of 271N due to the PMZ factor. The waters south of 271N are important areas, and Taiwan is presently planning to resolve the associated issues. Taken together, these considerations explain the area consensus reached by both Taiwan and Japan in the Agreement. The Agreement chart (Fig. 3) shows that the distance between Taiwan proper (or the Pengjia Islet) and the farthest point (point A) of the ‘Agreement-designated zone’ is much farther than 200 nm.25 Only when measurement begins at the Diaoyutai/Senkaku Islands will point A fall in the EEZ asserted by Taiwan. This suggests that Japan in fact acknowledges Taiwan as a relevant party in the sovereignty dispute over these Islands.

4.3. Scope of the Agreement-designated zone24 The Agreement-designated zone consists of ‘Waters where the other party's laws are not applicable’ and a ‘special cooperation zone’. The waters of agreed-upon regions are defined by geographic coordinates (latitude and longitude), rather than by the ‘median line’ or ‘TEL’ as previously asserted by respectively Japan and Taiwan. The zones within the lines, formed by joining the 12 coordinate points south of 271N, are the regions of ‘Waters where the other party's laws are not applicable’, and fishing activities conducted in these waters are consequently not under the jurisdiction of the other party's domestic regulations. The five coordinate points outside this area, joined by straight lines, form the ‘special cooperation zone’, and it is in this area that disputes commonly occurred. As pertaining to the Agreement, the Taiwanese and Japanese fishing boats operating in this area are managed by their own respective regulatory authorities. The boundaries designated in the Agreement are shown in Figs. 2 and 3. To ensure that both Taiwan and Japan's respective domestic fisheries regulations do not interfere with this special Agreement, both parties had to make the necessary amendments to their fishing regulations within one month of signing the agreement, following appropriate legislative processes. Whilst the two separate regions of water have been defined and titled differently, they were both established specifically for the purpose of conserving and appropriately exploiting the living marine resources in the overlapping EEZs, maintaining order in fishing activities, and preventing disputes amongst fishermen. The fact that both Taiwan and Japan's domestic fisheries regulations do not apply to fishermen of the other party indicates that the principle of Flag State Jurisdiction has been adopted by the Agreement. As such, Taiwanese and Japanese fishermen can operate freely in waters defined by those two areas and will not be interfered with by other party's patrol vessels. Analyzing the areas defined in the Agreement shows that although Japan had never recognized the area delimited by the TEL, the limits of the newly defined zone actually surpass the area defined by the TEL in three places (Fig. 3), and consequently the total zone of operation has increased by 1400 nm2 (approximately 4530 km2). As to Japan, there are also 1854 nm2 (approximately 6000 km2) increased which are located to the west of Japan's claimed median line. However, there are almost no Japanese fishing boats operating here. The zone north of 271N and the related clause was adopted due to consideration for the PMZ already drawn up in the Japan– China Fisheries Agreement [1,5,6,35]. An overlap of waters with the PMZ as agreed between Japan and China would cause further complications. Despite Taiwan's efforts to resolve the issues, including fisheries and overlapping EEZs between Taiwan and 23 24

Art. 1 of the Taiwan–Japan Fisheries Agreement. Art. 2 of the Taiwan–Japan Fisheries Agreement.

4.4. The Fisheries Committee26 The new Fisheries Committee created through the Agreement consists of two representatives of Taiwan and Japan, respectively, or their acting personnel, as well as two additional special members. The meeting minutes of the Committee must be sent to the respective regulatory authorities of both sides for approval. The objective of the committee is to ensure that the living marine resources in the Agreement-designated zone will not be overexploited, and to guarantee the safety of fishermen operating in the area. The objective of the Committee is thus to enhance fisheries cooperation between Taiwan and Japan. When committee meetings are convened, specialists representing related regulatory authorities can be invited to attend as special members. In general, the committee convenes once every year and location of the meeting alternates between Taipei and Tokyo. Sessions may be called in extenuating circumstances if required, and meetings with related private fisheries organizations may also be granted, depending on requirements. Decisions of the Committee can only be made and confirmed by all attending members from both sides. Taiwan and Japan must accept the decisions mutually. The decisions will impact only on Taiwan and Japan but the other parties.

4.5. Binding force of the Agreement27 The Agreement stipulates that it would come into effect on the date signed. Should any of the parties wish to terminate the Agreement, they were required to notify the other party via written dispatch six months prior to the Agreement's termination, and the notification of termination would not be affected by the Agreement's date of initiation. This signifies that the Agreement came into effect on the date of signing and would only become ineffective six months after any one of the parties sends a written notification, and that the Agreement would continue to be legally binding unless one party received a written notification from the other party. Besides, the Agreement does not create either obligations or rights for a third State without its consent.28 At any rate, the Agreement is only binding on Taiwan and Japan but the other third parties. 25 Measurements made by the authors through the ‘Geographic Information System (GIS)’ technology. Point A is approximately 245 nm from Pengjia Islet and approximately 263 nm from Taiwan proper. 26 Art. 3 of the Taiwan–Japan Fisheries Agreement. 27 Art. 5 of the Taiwan–Japan Fisheries Agreement. 28 Art. 34 of the Vienna Convention on the Law of Treaties 1969.

300

Y.-H. Yeh et al. / Marine Policy 51 (2015) 293–301

Fig. 3. Taiwan–Japan Fisheries Agreement-designated zone.

4.6. Position on issues relating to the UNCLOS29 The Agreement asserts that all items and actions stated were not to be assumed to automatically represent the stance and opinion of the Taiwanese and Japanese regulatory authorities on issues relating to the UNCLOS. Although this clause does not explicitly define or explain the details, it basically refers to the sovereignty dispute over the Diaoyutai/Senkaku Islands and the maritime boundary delimitation. In order to refrain from encompassing the Diaoyutai/Senkaku Islands sovereignty dispute, Taiwan and Japan agreed to segregate the 12 nm waters around these Islands from the Agreement-designated zone and treat it as a ‘nonspecific area’. This type of no-prejudice clause was to ensure the statements in the Agreement would not adversely affect their respective opinions and interpretations on territorial sovereignty issues and maritime jurisdiction zones pursuant to international law. The Agreement was congruent with the spirit of UNCLOS and provided interim measures until definitive boundaries were delimited in accordance with UNCLOS.30 4.7. Taiwanese and Japanese fishermen's response to the Agreement As agreed upon by the officials of both parties, the content of the Agreement is also mutually acceptable consensus by both parties. However, fishermen from the two sides responded to the Agreement very differently. The majority of Taiwanese fishermen expressed a positive attitude toward the Agreement, as in practice the number of Taiwanese fishing boats operating in the waters relevant to the Agreement was far greater than that of Japanese fishing boats. Taiwanese fishing boats would now enjoy an extra 1400 nm2 for fishing, were subject to the principle of Flag State Jurisdiction, were better protected against prevention, detention, or penalty by Japanese patrol vessels, and therefore had the potential to gain greater benefits than ever before. Although Japanese fishermen would now enjoy the water of an extra 1854 nm2 located to the west of Japan's claimed median line 29 30

Art. 4 of the Taiwan–Japan Fisheries Agreement. Art. 74 of the UNCLOS.

apparently, there are almost no Japanese fishing boats operating here. It does actually not benefit Japanese fishermen. In contrast, Japanese fishermen would now face greater competition because Taiwanese fishing boats outnumbered them in these original waters. As they furthermore had not previously faced the same interference risk level as Taiwanese boats, most Japanese fishermen responded negatively to the Agreement.

5. Conclusion The Taiwan–Japan Fisheries Agreement embodies the ideals and spirit of the East China Sea Peace Initiative. It has received general support from many countries [52–54] and has provided an important mechanism to the longstanding fishing dispute between Taiwan and Japan. Although the disputes regarding the waters 12 nm around the Diaoyutai/Senkaku Islands and north of 271N were not resolved during the latest rounds of negotiation, Taiwan and Japan can either continue discussions or the Fisheries Committee can take over these issues. No principle or notion of any international law states that all disputes must be resolved by a single treaty or agreement, and this is illustrated by the Taiwan– Japan Fisheries Agreement conforming to the spirit of the UNCLOS. The Agreements regarding the central and southern waters of the East China Sea are covered in both the Japan–China and the Taiwan–Japan Fisheries Agreements. As one of the parties in both Agreements, Japan plays a critical role in the negotiations of designated zones in the Agreements. Should Taiwan and China be able to undergo fisheries negotiations regarding their overlapping waters or even sign an agreement, then the ‘three parallel tracks of bilateral dialog’ as advocated by the East China Sea Peace Initiative can actually be realized. And if this prerequisite exists, then there is the possibility that the fisheries relations between the three sides involved can become ‘one-track trilateral negotiations’. Fishing in the East China Sea is currently governed by four bilateral Fisheries Agreements between Japan–Korea, Japan–China, China–Korea and Taiwan–Japan. There is the potential for these to develop a regional fisheries management organization. From a viewpoint of sustainable utilization of fishery resources, it seems

Y.-H. Yeh et al. / Marine Policy 51 (2015) 293–301

necessary that the States and entities surrounding the East China Sea establish a formal, permanent regional fisheries management organization to positively and substantially contribute towards fishery resources and to help the East China Sea become the sea of peace, cooperation and friendship. The Taiwan–Japan Fisheries Agreement will reduce tensions and help promote peace and stability in the East China Sea effectively. However, the Taiwan–Japan Fisheries Agreement does not specifically bind the third parties operating in the Taiwan– Japan Agreement-designated zone, especially for the other States surrounding the East China Sea. Similarly, the Japan–China, Japan– Korea, China–Korea Fisheries Agreements also encounter the same situation. If a regional fisheries management organization can be established in the East China Sea, it will provide the solution to this issue. References [1] Zou K. Sino-Japanese joint fishery management in the East China Sea. Mar Policy 2003;27(2):125–37. [2] Kang JS. Analysis on the development trends of capture fisheries in the North-East Asia and the policy and management implications for regional co-operation. Ocean Coast Manag 2006;49(1):45–9. [3] Bateman S. Economic growth, marine resources and naval arm in the East Asia —A deadly triangle. Mar Policy 1998;22(4–5):298. [4] Hudson C. Fishery and economic zone as customary international law. San Diego Law Rev 1980;17(3):661. [5] Kang JS. The United Nation convention on the law of the sea and fishery relations between Korea, Japan and China. Mar Policy 2003;27(2):113–22. [6] Kim SP. The UN convention on the law of the sea and new fisheries agreements in north East Asia. Mar Policy 2003;27(2):98–107. [7] Dyke JMV. North-East Asian Seas-conflicts, accomplishments and the role the United States. Int J Mar Coast Law 2002;17(3):410–5. [8] Tseng HS, Ou CH. Taiwan and China: a unique fisheries relationship. Mar Policy 2010;34(6):1156–8. [9] Valencia JM, Amae Y. Regime building in the East China Sea. Ocean Dev Int Law 2003;34(2):196. [10] Hsiung JC. Sea power, the law of the sea, and the Sino-Japanese East China Sea ‘Resource War’. Am Foreign Policy Interests 2005;27(6):519–21. [11] Chiu H. The international legal status of Taiwan. In: Henckaerts JM, editor. The international status of Taiwan in the new world order. London: Kluwer law international; 1997. [12] Taiwan Governor-General Office. Aquatic abstract in Taiwan. Taipei: Taiwan Governor-General Office; 1940. [in Japanese]. [13] Chen TB. Overview of Taiwanese fisheries. In: Economic Research Department of Taiwan Bank, editor. Collection of Economic Research in Taiwan: a study on Taiwanese Fisheries. Taipei: Taiwan Bank; 1974. [in Chinese]. [14] Laing LS. Fishing industry in Taiwan before 1945. In: Economic Research Department of Taiwan Bank, editor. Collection of Economic Research in Taiwan: a study on Taiwanese Fisheries. Taipei: Taiwan Bank; 1951. [in Chinese]. [15] Luo CJ. History of Taiwan fishing industry. Taipei: Legislative Yuan; 1998 ([in Chinese]). [16] Taiwan Governor-General Office. Aquatic abstract in Taiwan. Taipei: Taiwan Governor-General Office; 1925. [in Japanese]. [17] Taiwan Governor-General Office. Taiwanese aquatics. Taipei: Taiwan Governor-General Office; 1935. [in Japanese]. [18] Lin MC. Fisheries of Taiwan. In: Economic Research Department of Taiwan Bank, editor. Collection of Economic Research in Taiwan: a study on Taiwanese Fisheries. Taipei: Taiwan Bank; 1951. [in Chinese]. [19] Zou K. China's exclusive economic zone and continental shelf: development, problem, and prospect. Mar Policy 2001;25(1):78–9. [20] Ou CH, Tseng HS. The fishery agreements and management systems in the East China Sea. Ocean Coast Manag 2010;53(5–6):280–6. [21] Ferguson JP. Japanese–Russian relations, 1907–2007. London: Routledge; 2008.

301

[22] Valencia MJ. A maritime security regime for Northeast Asia. Asian Perspect 2008;34(2):160. [23] Ludwig NA. An ainu homeland: an alternative solution for the Northern Territories/Southern Kuriles imbroglio. Ocean Coast Manag 1994;25(1):1–25. [24] Dyke JMV. North-East Asian Seas-conflicts, accomplishments and the role of the United States. Int J Mar Coast Law 2002;17(3):398–402. [25] Ludwig NA, Valencia JM. Building North-east Asian maritime regimes. Mar Policy 1995;19(2):90. [26] Hiroshi T. On becoming an ocean State. Jpn Echo 2007;34(1):38–9. [27] Dyke JMV. Disputes over Island and Maritime Boundaries in East Asia. Taiwan Ocean Law Rev 2006;5(1):141–83. [28] Su SW. The Tiaoyu Islands and their possible effect on the maritime boundary delimitation between China and Japan. Chin J Int Law 2004;3(2):415–6. [29] Dyke MJV. Maritime boundaries in the East China Sea and South China Sea. Taiwan Ocean Law Rev 2007;6(2):117. [30] Valencia MJ. The East China Sea dispute: context, claims, issues, and possible solutions. Asian Perspect 2007;31(1):138–42. [31] Curtis GL. Japan's cautious hawks: why Tokyo is unlikely to pursue an aggressive foreign policy. Foreign Aff 2013;92(2):77–86. [32] Singh B. Obama, the Senkaku/Diaoyu Islands, and the US–Japan Security Treaty, 〈http://csis.org/files/publication/Pac1436A.pdf〉 [accessed 15.07.14]. [33] Emery KO, Hayashi Y, Hilde TWC, Kobayashi K, Koo JH, Meng CY, et al. Geological structure and some water characteristics of East China Sea and Yellow Sea. UNECAFE/CCOP Tech Bull 1969;2:3–43. [34] Au KW. The East China Sea issue: Japan–China talks for oil and gas. East Asia 2008;25(3):223–41. [35] Valencia MJ. Energy and insecurity in Asia. Survival 1997;39(3):97–8. [36] Willums JO. Prospects for offshore oil and gas developments in the People's Republic of China, 〈https://www.onepetro.org/conference-paper/OTC-2086-MS〉 [accessed 16.05.14]. [37] The China Post, 18 March 2011, 〈http://chinapost.com.tw/taiwan/national/ national-news/2011/03/18/295074/Ma-to.htm〉 [accessed 16.05.14]. [38] Lee WC. Troubles under the Water: Sino-Japanese conflict of sovereignty on the continental shelf in the East China Sea. Ocean Dev Int Law 1987;18(5):599. [39] Xue G. Bilateral fisheries agreements for the cooperative management of the shared resources of the China Sea: a note. Ocean Dev Int Law 2005;36(2):369. [40] Taiwan Coast Guard. The ocean and the seas of Taiwan. Taipei: Taiwan Coast Guard; 2010. [in Chinese]. [41] Cheng YM. Review of relevant protective fishery tasks of ‘Temporary Enforcement Line’ by the Coast Guard Administration. Coast Guard Bull Bi-monthly 2006;23:32 ([in Chinese). [42] Reinhard D. Japanese–Chinese territorial disputes in the East China Sea – between military confrontation and economic cooperation, 〈http://eprints.lse. ac.uk/20881/1/Japanese-Chinese_territorial_disputes_in_the_East_China_Sea_ (LSERO).pdf〉 [accessed 16.09.13]. [43] Taiwan Coast Guard. Taiwan Coast Guard annual statistical report 2014. Taipei: Taiwan Coast Guard; 2014. [ in Chinese]. [44] The Economist. Protesting too much: Anti-Japanese demonstrations run the risk of going off-script. Available from: 〈http://www.economist.com/node/ 21563301〉 [accessed 06.09.13]. [45] The Economist. Taiwan wades in Water-gunfighting, 〈http://www.economist. com/blogs/banyan/2012/09/taiwan-wades〉 [accessed 25.09.13]. [46] Taiwan Coast Guard. Coast Guard annual report 2013. Taipei: Taiwan Coast Guard; 2013. [ in Chinese]. [47] Washington Post; 10 October 2012. [48] The East China Sea peace initiative implementation guidelines, 〈http://www.mofa. gov.tw/official/Home/Detail2/dad9c091-22ca-46e5-a043-b19559bf4103?TopicsUni tLinkId=cb15d631-a844-4b22-a2bf-c69a359822d3〉 [ accessed 07.09.13]. [49] Kouichiro G. A message to all citizens of Taiwan, 〈http://www.koryu.or.jp/ taipei-tw/ez3_contents.nsf/04/31BBE35F9EDE1AEC49257A8E000EADA7? OpenDocument〉 [in Chinese, accessed 06.09.13]. [50] Su SW. The territorial dispute over the Tiaoyu/Senkaku Islands: an update. Ocean Dev Int Law 2005;36(1):47. [51] Pan Z. Sino-Japanese dispute over the Diaoyu/Senkaku Islands: the pending controversy from the Chinese perspective. J Chin Polit Sci 2007;12(1):75–6. [52] The Australian, 12 April 2013, 〈http://www.theaustralian.com.au/news/world/ japan-shocks-china-on-senkakus/story-e6frg6so-1226618589623〉 [accessed 07.07.14]. [53] Asia Times, 15 April 2013, 〈http://www.atimes.com/atimes/China/CHIN-01150413.html〉 [accessed 07.07.14]. [54] USA Today, 29 April 2013. 〈http://www.usatoday.com/story/opinion/2013/04/ 29/china-taiwan-tokyo/2121539/〉 [accessed 07.07.14].